Free Press lately has taken to attacking FCC Chairman Julius Genachowski for not yet adopting net neutrality mandates to regulate Internet service providers. The most recent attacks, increasingly personal, are ill-conceived. And, joined as they are by acts of street theatre, they do not contribute constructively or in a serious way to the regulatory debate.
For example, last week Free Press and other pro-net neutrality advocates protested in front of the FCC's headquarters by handing out waffles as they trumpeted their “Don't Waffle on Net Neutrality Campaign!" In a press release, Free Press admonished Chairman Genachowski to "stop waffling and get to work."
There is no need to say much about the street theatre other than to make the obvious point that, while Free Press has every right to protest outside the FCC's headquarters with waffles and signs, the FCC commissioners should not be influenced by such antics. Their decisions must be governed by the facts, by the law, and by sound regulatory principles and policy perspectives.
With this in mind, this statement in the Free Press release particularly struck me: "The public can’t afford to wait much longer for the FCC to stop waffling and move forward on enacting real Net Neutrality rules to ensure that the Internet remains open for everyone.” This claim immediately raises the question: Why the need for any administrative action, much less the need for quick action, especially as Congress is actively considering broadband legislation.
Free Press says the public "can't afford to wait much longer." Why? There is no evidence that the Internet services market suffers from a market failure or that consumers are experiencing any demonstrable harm as a result of the absence of Internet regulation. There is no evidence, in Free Press's words, that the Internet presently is not "open for everyone." And there is no reason to believe, consistent with the workings of the marketplace, that the Internet will not remain open.
Indeed, surveys indicate that consumers generally are satisfied with their Internet service. A poll released last week by Broadband for America, a group supported by major Internet service providers, indicates 75 percent of the survey respondents said that "the Internet is currently working well." And 55 percent responded that "the federal government should not regulate the Internet at all." The FCC's own survey released last June showed that 91 percent of broadband users are either "very" or "somewhat" satisfied with the speed of their Internet service at home.
Amidst this sea of reported consumer satisfaction, it makes no sense for Free Press to lambast Chairman Genachowski for failing to adopt a new regulatory regime for the Internet, especially one akin to the rigid common carrier regulation traditionally applied in a monopoly environment or in cases of market failure. If anything, Genachowski should be commended for now recognizing the virtue of proceeding cautiously – if indeed he truly has recognized such virtue – in light of the risks to continued infrastructure investment and innovation that his Internet regulation proposals entail.
Over the weekend, in rummaging about old papers, I came across this statement from the landmark 1978 "Study on Federal Regulation" prepared by the Senate Committee on Governmental Affairs: "Simply because a problem exists and, in theory is remedial, does not mean that regulation or other government intervention is desirable. Controls should only be undertaken where there is a clearly identified problem that cannot otherwise be solved, and where the anticipated achievements are significant and not vitiated by projected adverse consequences." While there are various formulations of the cost-benefit analysis that should be an integral part of an agency's decision regarding whether or not to adopt any new significant regulation, the statement above is surely a good one.
But please note the requisite predicate for proceeding with any agency regulation at all: that "a problem exists" or "there is a clearly identified problem." With respect to the proposals for government imposition of net neutrality mandates, absent a clearly identified problem, the case for regulation fails at the outset. And, thus, so does the unwarranted charge of waffling.
There is vice in rushing to regulate absent a clearly identified problem. And there is virtue in proceeding cautiously when considering intervention in a marketplace that is working well.